Carter v Chief Executive, Department of Natural Resources and Mines

[2001] QLC 102

LAND COURT

BRISBANE

28 SEPTEMBER 2001

Re: AV00-577 & 581

Appeals against an Unimproved Valuations
Valuation of Land Act 1944
Local Government: Dalrymple

Phyllis E and William R Carter (AV00-577)

Helen M Carter (AV00-581)
v.

Chief Executive, Department of Natural Resources and Mines

J U D G M E N T

These two appeals arise from valuations carried out by the Chief Executive pursuant to the Valuation of Land Act1944. The valuations were carried out as at a relevant date of 1 October 1999. The parties consented to both appeals being heard together. Appeal AV00-581 is with respect to the property known as "Felspar" which the Chief Executive had valued at $620,000 initially, but before me led evidence to a value of $610,000. The appellant contends for a value of $400,000. "Felspar" has an area of 22,853 ha. Appeal AV00-577 is concerned with "Old Station", a property run in conjunction with "Felspar", which is the home property. "Old Station" has an area of 10,999.734 ha. The Chief Executive originally valued this property at $400,000 then following objection reduced it to $380,000, however, before me led evidence to a figure of $330,000. The appellants in the case of this property contend for a valuation of $280,000.
Harvey George Carter appeared as agent for the appellants and gave evidence on their behalf. Stephen Brooks Gilbert, a registered valuer, employed by the Chief Executive, provided written valuations in support of the Chief Executive's valuations. Michael McDougall, also a registered valuer employed by the Chief Executive, gave evidence with respect to valuation work that he had done as a precursor to the valuations contested before me. I will not recite the grounds of appeal which are adequately reflected in the issues which are discussed below in these reasons. One such ground of appeal related to the level of the increase in valuation since the previous statutory valuation for each of the subject properties, a level of increase which it was submitted for the appellants was too great. The valuation of "Felspar" as at the earlier valuation date of 1 October 1998 had been $420,000, whilst the "Old Station" valuation had been $300,000.
The amount of increase, as such, in valuations is not relevant to the task which confronts me in cases such as this. The Land Appeal Court in Tow v. The Valuer-General (1978) 5 ALCR 378 gave consideration to this issue and, after referring to the provisions of the Valuation of Land Act, said at 381:
" Subject to certain statutory requirements as to the onus of proof and the restriction of the appellants to the grounds of appeal specified in their notice of appeal, the duty of the Land Court and of this Court is to make determinations of the unimproved values based on the evidence presented to it by the parties and conforming to the aforementioned statutory formula
It follows that a large increase over and above the previous valuation is in itself not a relevant issue provided bona fide sales of comparable parcels support eh new valuation."
Mr Carter raised a related matter to that discussed above in that he said that the appellants had a "philosophical objection" to the upgrading of valuations without inspection of the properties being valued. As I understand the evidence of Mr McDougall, he had inspected and analysed 26 sales in the region of the subject properties and, based on departmental records with respect to individual properties, had adjusted their valuations in accordance with that sales evidence. The valuations of the subject properties were initially struck in this manner Now whilst the presentation of that skeletal method to this Court may lead to evidential problems for the Chief Executive, that is not what was done here. In the cases before me Mr Gilbert inspected the sales which he relied on and to which I will refer in due course, as well as the subject properties and completed his valuation by comparing the one with the other. He utilised Mr McDougall's work and departmental records in that process, but as long as he did not rely on those sources exclusively for his opinion on any material aspect of his valuation, no complaint can be raised. As I understand the evidence, Mr Gilbert proceeded to carry out his valuations in an acceptable manner and brought to bear his own professional opinion as to the values that ought to apply. That is apparent from his having reduced the valuations of each of the subject properties; that of "Old Station" in particular.
Mr Carter also raised a question as to the time and method involved in Mr Gilbert's inspection of the subject property, the intimation being that Mr Gilbert was less than thorough. I will not detail that evidence. I do not conclude that for the purpose of carrying out the valuations Mr Gilbert's inspections were inadequate. To the extent that he may have overlooked something relevant or formed a wrong view, the appeal process provides an opportunity for the appellant to correct such errors. I would prefer to focus on the substantive evidence with respect to such matters, rather than to attempt to draw some general conclusion on the basis of an assertion of an inadequate inspection.
Mr Carter introduced the property "Talavera", a 13,050 ha property which adjoins "Old Station" to the east. "Talavera" sold on 4 July 1989 for $1,073,000 "bare land price" ($82.22 per ha), then again on 7 April 1993 for $1,000,000 "bare land price" ($76.62 per ha). Mr Carter described the term "bare land price" to be one which included the property, and all fixtures and improvements to the land, but excluding livestock and chattels. He said that this sale property was very similar to "Old Station", though not dissimilar to "Felspar", however, he included the sale primarily to show that as at the earlier valuation date of October 1998 this sale was available to show a level of value consistent to the level revealed by two sales relied upon by Mr Gilbert. Those two sales were "Amelia Downs", which Mr Carter said sold at a price of $82.54 per ha and "Junction Creek", which sold for $62.50 per ha. These prices were calculated having regard to departmental records as to the unimproved sale prices and the property areas.
It is Mr Carter's contention that as "Talavera" demonstrates a level of value in 1993 which is consistent with that revealed by two of the sales relied upon by Mr Gilbert, the Chief Executive has not demonstrated that there has been an increase in value between 1 October 1998 and 1 October 1999.
The Chief Executive did not contend that sales, which indicated values similar to those presently applied to the subject properties, were unavailable at the earlier valuation dates. The Chief Executive simply says that "Talavera" and sales at a similar level were not applied in the 1998 valuation or, for that matter, in 1994 when the "Talavera" sale would have been available. Mr McDougall, as I said above, explained that he had inspected and analysed 26 sales as part of the lead-up to the 1999 valuation of the subject properties and others in the same region in the Charters Towers area. That work included the sales relied upon by Mr Gilbert in the valuations under consideration - sales that had been available for the 1998 valuation as well. Nevertheless, the Chief Executive adopted the view that in 1998 there was not a sufficient body of evidence available to conclude that there was a rise in valuation of the order indicated by the available sales. "Talavera" itself was an adjoining owner sale, therefore its level was thought suspect notwithstanding that its sale price in 1993 was less than that obtained in 1999. I have no evidence as to whether there was any difference in the subject matter at the two dates of sale. The basalt country in which the subject properties are located is tightly held with few sales taking place, leading the Chief Executive's valuers into a position of difficulty: do they incrementally move to a higher level of value which is supported by "thin" market evidence, or do they wait for a clearer trend to emerge, then apply a higher level of values which can be criticised by landowners as being a form of "catch-up"?
The validity of the choice made by the Chief Executive between the two options I have presented in the above paragraph is not a matter which, as such, falls for consideration by this Court. In such matters the Land Court is concerned with the question of whether the sales evidence supports the value contended for and in this case it is that value as at 1 October 1999. Having said that, I acknowledge that a large valuation increase is undoubtedly a matter of concern in managing the business and cash flow requirements of a grazing property, notwithstanding the obvious argument that property owners might have had the advantage of lower levels of rent or local authority rates during the intervening years. I stress, however, that it is the level of value at the relevant date before me that is in issue, not the value at some earlier date, or the level of increase between that earlier date and the present relevant date. I now turn to another proposition advanced by Mr Carter.
The appellant, Helen M Carter, who is the wife of Harvey Carter, purchased "Felspar" from Mr Carter's father. Prior to the sale price being agreed upon, a valuation was provided by Peter Honnef, a registered valuer, who valued the property as at 16 April 1999. His valuation, which was received in evidence, records a value of $1,500,000 on the property, excluding livestock, plant and machinery. Mr Carter said that the parties to the transaction adopted Mr Honnef's valuation as the purchase price for the property soon after receipt of the valuation in 1999, though settlement did not take place until 30 June 2000. Between those two dates it was apparently agreed to adjust the price by deducting $300,000 from the $1,500,000 figure to reflect the value of livestock, plant and equipment included in the transaction. That evidence was revealed on cross-examination. Family transactions of this type are frequently avoided by valuers and, given the state of evidence with respect to this transaction, I can readily understand why this is so. Nevertheless, Mr Carter expressed the view that the price of $1,500,000 represented the value of the property as improved and described the $300,000 adjustment as being a matter of accounting only.
I should mention that Mr Honnef was not called to give evidence. I accepted the tender of his valuation not as evidence of the truth of all of its contents, but as evidence only of the existence of that opinion as to value.
Based on that opinion of value with which Mr Carter agreed, Mr Carter provided an analysis by deducting what in his opinion were the values of improvements on "Felspar". The result was a negative figure of $180,716. Mr Carter readily recognised that land could not have a negative value, so suggested that his value estimate of $400,000 was therefore appropriate. The logic of that proposition does not commend itself to me. The production by analysis of a negative land value clearly indicates that the values placed on the improvements overall are too high. Apart from that, I see no rational connection between that analysis and the adoption of the figure of $400,000. This brings me to another valuation method suggested by Mr Carter.
"Wandovale" sold in April 1998 for $5,100,000 "bare market price". As at a relevant date of 1 October 1999 the Chief Executive placed a value of $1,200,000 on that property. Mr Carter calculated that unimproved value as being at a ratio of 0.235 to the bare market price. He then applied that ratio to the figure of $1,500,000 derived from Mr Honnef's valuation to yield a figure of $352,941. Given that this figure is less than the $400,000 contended for, I understand Mr Carter's proposition to be that the $400,000 figure is therefore not inappropriate.
There was some discussion as to the appropriateness of a comparison between "Wandovale" and "Felspar". It was Mr Carter's contention that "Wandovale" was a suitable basis because of its proximity to "Felspar" and because it is a superior property. Mr Gilbert was of the view that "Wandovale" was not an appropriate basis as it was in a different class from either subject property. It has an area of 220,000 ha, therefore is almost 10 times the size of "Felspar" and more than 20 times the size of "Old Station". The question of whether a property is suitable for comparison is really one of degree, whilst the adoption of one sale property over another turns on which is more directly comparable; that is which involved the making of fewer valuation adjustments. It is quite clear to me that comparison between "Wandovale" and either subject property is inappropriate for valuation purposes when considered against the sales relied upon by Mr Gilbert. Apart from that, neither Mr Carter nor Mr Gilbert provided me with an analysed unimproved value of "Wandovale". Comparisons between the Chief Executive's valuations as a primary method of valuation are suitable only in the absence of sales. (W & TJ Fischer v. The Valuer-General (1983) 9 QLCR 44 at 46).
Mr Carter submitted that his method of applying the ratio of the Chief Executive's unimproved value to the bare market value of "Wandovale" to "Felspar" is a method which is more appropriate than the method employed by Mr Gilbert, that is the analysis of sales to unimproved value then comparison with each subject property. I do not accept that submission. First, I do not accept Mr Honnef's valuation as being of any evidential weight in the contest between the parties in the absence of him being presented for cross-examination. More importantly, however, I do not accept the validity of the method employed by Mr Carter. It bears none of the characteristics of an acceptable method of valuation.
"Grenfell Downs" is a property introduced by Mr Carter as a property whose relativity in value as found by the Chief Executive should be utilised in valuing the subject properties. "Grenfell Downs" has an area of 10,880 ha, that is similar to "Old Station" but less than half the size of "Felspar". The Chief Executive's valuation for "Grenfell Downs" as at 1 October 1999 was $305,000 or $28 per ha. Mr Carter said that "Grenfell Downs" is better located than either of the subject properties, has less stony ridge country, better water safety, more black soil, fewer noxious weeds and does not suffer from old fence wire being found on the ground - a disability of the subject properties that I discuss later in these reasons. It is for these reasons that Mr Carter submits that the value of both subject properties ought to be less than $28 per ha. Now the Chief Executive did not address the points of comparison raised by Mr Carter, but Mr McDougall did outline the method of valuation employed there. In effect, "Grenfell Downs" was valued by using departmental records and was not inspected for the purpose of carrying out the 1999 valuation. In circumstances such as the present where Mr Gilbert has proceeded in the manner of comparing the subject properties with sales transactions, all of which have been inspected by him, I elect not to rely on the relativity approach suggested by Mr Carter in reference to "Grenfell Downs". In making that election I see myself as being bound by the Land Appeal Court in Grahn v. The Valuer-General (1992) 14 QLCR 327 where at 328 this clear direction appears:
"Whilst maintenance of correct relativity is of considerable importance for rating valuations, the use of the principle of relativity should not be preferred to the exclusion of relevant (even if not ideal) sales evidence."

Having rejected the valuation evidence put forward by Mr Carter, I now turn to Mr Gilbert's valuation to ascertain whether he has "acted upon a wrong principle, or made a serious error of fact". I take those words from the judgment of the High Court in Brisbane City Council v. The Valuer-General (1978) 5 QLCR 283 at 303:
"The question then is whether a court on appeal is bound to accept the Valuer-General's figure as correct unless it is positively established that the true value is lower, or whether it is enough to show that the value was reached as the result of an error in principle. In my opinion once it is shown that in making the valuation the Valuer-General acted upon a wrong principle, or made a serious error of fact, the presumption created by s.13(7) is rebutted."
"Felspar" is situated about 143 km north-west of Charters Towers and is accessed by 57 km of bitumen strip Lynd Highway, then 82 km formed earth and gravel road, some small sections of which have been bitumen sealed. The formed earth and gravel section cannot be considered all-weather access with the road impassable during most wet seasons, especially early in the year when cattle are ready and prices are usually firm.
Mr Gilbert described the nature of the "Felspar" country as:
"About 1540 hectares (7%) comprises generally steep and unusable gorges and severed country along the Basalt River. About 1460 hectares (6%) comprises black soil with thick black ti-tree patches. About 450 hectares (2%) comprises a rocky granite hill with silver leaf ironbark wire grass and white spear grass. About 670 hectares (3%) comprises open black soil plain and creek lines and the balance of 18733 hectares (82%) comprises undulating red basalt forest timbered with narrow leaf ironbark, bloodwood and gum. There are generally low rocky basalt ridges and walls throughout and some areas of gum hollows."

Mr Carter took exception to some of the language in the above description and, to Mr Gilbert's choice of words in other parts of his two valuations. Mr Carter was concerned that I not be misled by the language used by Mr Gilbert which Mr Carter thought generally understated the disabilities of each of the subject properties. I have listened to that evidence and reread the transcript and looked at the other evidence, including photographs tendered by Mr Carter, and can say that I have a good understanding of what is intended in the language included in Mr Gilbert's valuation reports. I do not intend to deal with each of the challenges to terminology raised by Mr Carter, but will make what I consider to be appropriate emphasis where the evidence warrants. In the above description of "Nature of Land" I need to emphasise that Mr Gilbert accepts that "Felspar" is probably the worst affected property in the basalt area with respect to basalt ridges and walls and rocky country.
Mr Gilbert expressed the view that the carrying capacity of the "Felspar" property "in natural state" was one beast to 10.5 ha. Those words "in natural state" appeared to mislead counsel for the Chief Executive who, in turn, misled Mr Carter as to the manner in which Mr Gilbert had assessed the carrying capacity of each of the subject properties. In the end, however, there appeared to me to be nothing between the parties with respect to carrying capacity as Mr Carter agreed that the carrying capacities assessed by Mr Gilbert for each of the properties was consistent with that of other properties in the basalt country on an improved basis. Of course, that the carrying capacity, as improved, is a reflection of the natural potential of a property in its unimproved state and is an appropriate method of classification of country, in my view. Notwithstanding this apparent agreement, Mr Carter stressed that the achievement of the carrying capacity of "Felspar" resulted only from the level of improvements carried out there. He said that timber treatment of about 8,100 ha, the installation of artificial waters and the construction of appropriate fencing all contributed to the achievement of "Felspar's" optimum carrying capacity. He said that additional improvements were needed on "Felspar" compared with other properties in the area because the basalt ridges and walls interfered with the ability of cattle to walk between water and feed. That disability had to be compensated for by the installation of these additional improvements. I did not understand Mr Gilbert to disagree with that proposition, however, he did not agree with Mr Carter's view that the construction of fenced laneways on "Felspar" was a requirement resulting from the nature of the country. Mr Gilbert was of the view that whilst laneways were quite popular in current times, the choice as to whether laneways ought to be constructed was largely a matter of management and was not dictated by the country exclusively. I accept that view.

Mr Gilbert described the natural water on "Felspar" in less than glowing terms. There is, he said, permanent water in the Basalt River (referred to by Mr Carter as the Broken River), however, because of steep banks/gorge the water is practically inaccessible and in any event, according to Mr Carter, stock choose not to use it. There are several other springs/soaks dependent on the season, however, these can become boggy and claim weak cattle. Whilst the property is used for the breeding and fattening of cattle, Mr Gilbert is of the opinion that these springs/soaks present a risk to breeder cattle - a proposition advised to him by Mr Carter.
Mr Gilbert described the presence of weeds in the form of grader grass, parthenium, rubbervine and black ti-tree patches. I understand that there is also some Indian couch there. Mr Carter was concerned to emphasise that the property was badly affected by weeds and that Mr Gilbert would not have had the opportunity to thoroughly appreciate the weed issue, given the timing of his inspection. Mr Gilbert conceded that point, though he thought he had made sufficient allowance for the weed problem on "Felspar" as he had based his valuation on Mr Carter's description of the weed problem..
The numerous rocky basalt ridges and walls on "Felspar" pose a difficulty in road building for internal access purposes, in Mr Gilbert's view.
"Felspar" is generally between 500 and 580 metres above sea level and frosts commonly occur there during winter, necessitating supplementary feeding. Such feeding is not uncommon in the area.
In his valuations of both subject properties Mr Gilbert relied on three sales: "Amelia Downs" "Junction Creek" and "Lava Plains". "Amelia Downs" sold for an analysed unimproved price of $667,184 ($32.40 per ha) on 14 January 1998. The Chief Executive determined an unimproved value of that property of $650,000 or $31.56 per ha. The sale property has an area of 20,595 ha and is located 120 km north-west of Charters Towers, via a road of 77 km of bitumen with the balance being formed earth and gravel. The sale property has about 12% open black soil plain with the balance comprising good red basalt forest country intersected by areas of gorge along the Basalt River and W Creek. Mr Gilbert estimated the carrying capacity at one beast to 10 ha. The property is used for the breeding and fattening of beef cattle.
"Junction Creek" sold for an analysed unimproved price of $753,681 or $31.40 per ha on 1 July 1996. The Chief Executive placed an unimproved value on that property of $640,000 or $26.67 per ha as at 1 October 1999. This sale property is located about 203 km north-west of Charters Towers, via a road which has 57 km of bitumen and the balance of formed earth and gravel. The sale property has an area of 24,000 ha and comprises about 6.5% open to lightly timbered black soil; 74% good open red basalt forest; 9% good to fair ironbark and box forest with the balance 9.5% comprising generally fair to poor forest ridges of box and ironbark on gravelly forest soils. Mr Gilbert estimated the carrying capacity of the sale property at one beast to 10.5 ha. The property is used for the breeding and fattening of beef cattle.
"Lava Plains" sold for an analysed unimproved price of $587,278 ($14.32 per ha) on 19 September 1996. The Chief Executive applied an unimproved value of $570,000 or $13.90 per ha to the property as at 1 October 1999. The sale property has an area of 41,000 ha and is located 260 km north of Charters Towers and approximately 90 km south of Mt Garnet. "Lava Plains" comprises approximately 84% open red basalt and red sandy forest country, with the balance unavailable lava flow or areas inaccessible owing to lava flow. Mr Gilbert estimated the carrying capacity on "Lava Plains" at 1 to 14 ha overall or 1 to 11.7 ha on the available country. I will first consider Mr Gilbert's comparison between "Felspar" and "Amelia Downs".
In his view the sale property is superior in situation being located 23 km closer to Charters Towers by road. The sale property is also considered superior in access with about 39 km less formed earth and gravel.
He said that sale property is of similar size and has a slightly higher percentage of fragmented black soil country. The carrying capacity of the sale (on a per ha basis overall) is slightly superior to the subject property.
The sale property, he said, is superior in regard to natural water having access to permanent natural surface water. Both properties have access to a number of non-permanent springs/soaks. However the sale's advantage is somewhat offset by added natural water on the sale creating greater bogging problems for cattle.
Mr Gilbert said that the subject property suffers internal access problems created by the numerous low rocky basalt ridges and walls and areas of surface stone. The sale property also suffers internal access problems, being broken by the Basalt River gorge and another steep gorge along W Creek. Station roads have been constructed across both gorges at considerable expense. South of the Broken River the country is broken by numerous low rocky basalt ridges and walls and areas of surface stone.
He offered the view that the sale property also suffers from similar disabilities to that of the subject property including frosts (both properties are at similar altitude), the need to feed supplements and the potential for weed invasion. The subject currently has a greater weed problem and is considered inferior in this regard.
Overall the subject land is, in Mr Gilbert's opinion, considered inferior to Sale 1 on a per ha basis.
Mr Carter agrees with the overall conclusion reached by Mr Gilbert, however he sought to emphasise certain aspects of inferiority which apply to "Felspar", in his view, in comparison with "Amelia Downs". He emphasised the greater presence of stone and basalt walls on "Felspar" and said that because of this "Felspar" suffered in terms of stock management and grazing and also in the provision of internal access. He said that "Felspar" had a greater presence of black ti-tree and a more substantial weed problem than "Amelia Downs" and the potential for a greater weed incursion, given its position downstream of known parthenium infested properties. I have come to the conclusion that Mr Gilbert has taken these points into account in his comparison between "Felspar" and "Amelia Downs".
Mr Carter did not agree that "Felspar" was at a similar altitude to "Amelia Downs" - a point that Mr Gilbert checked on during the hearing with the result being that he agreed that "Amelia Downs" was at a lower altitude. He said that the lower altitude of the sale property was offset somewhat by the larger areas of open black soil country where cold air tended to congregate, however, he agreed that in the end "Felspar" would have been a colder property with consequential impact on pastures and the capacity of stock to cope during winter.
In his comparison between "Junction Creek" and "Felspar" Mr Gilbert wrote in his valuation report:
"The sale property is inferior in regard to location and access, being considerably further from Charters Towers on earth and gravel road.
The sale property is similar in area, and has a similar overall carrying capacity.
The natural water on the sale comprises waterholes in Junction Creek, surplus from a spring on the boundary with 'Ellenvale', and several permanent and non-permanent springs/soaks. Both the quantity and distribution of natural water is considered superior to the subject property, however this advantage is somewhat offset by the internal access difficulties and bogging problems this water creates.
The sale property also suffers from disabilities including frosts and the need to feed supplements, and being higher in elevation is subject to colder winters. The sale property does not currently possess a major weed problem and the potential for weed invasion is considered slightly less due to the property being located higher in the watershed with less likelihood of transmission down creeks and rivers.
Overall the subject land is considered similar to sale 2 on a per hectare basis."

In Mr Carter's opinion the "Junction Creek" property is superior to "Felspar" because "Junction Creek" enjoys better natural water and is not as affected by rock and rock walls as is "Felspar". He thinks that "Junction Creek" is less affected by weed invasion and has smaller areas of ti-tree patches. Mr Carter has not convinced me that Mr Gilbert has made a material error in his description of natural water, nor that he has inadequately taken into account the difference in the presence of rock between the sale property and "Felspar", nor the propensity for weed invasion.
Both Mr Gilbert and Mr Carter agreed that "Lava Plains" is of limited use in valuing either "Felspar" or "Old Station", so I see no benefit in detailing the small amount of evidence that was provided with respect to that property. I come now to the "Old Station" valuation of Mr Gilbert.
"Old Station" is presently run in conjunction with "Felspar", though it was valued by Mr Gilbert on the basis of its existence as a separate title. In that respect Mr Carter submitted that the comparatively small area of "Old Station" meant that the property was virtually unsaleable except to a neighbour and that factor would have an impact on the property's value. Mr Gilbert noted that another property in the basalt area, "Cuba Plains", had been run successfully for many years and I note that other properties in the area range of "Old Station" are to be found in the region. Evidence I heard in the appeal concerning "Cuba Plains" was that the property did not comprise a living area and the tendency to overgraze to compensate for this factor has led to some degradation of the property. "Old Station" may have been somewhat protected from such an outcome, given its association with "Felspar", however, the size of it is certainly a relevant consideration and is one that I think Mr Gilbert has taken into account. He observed, I think correctly, that whilst the property may be saleable independently, it probably would be more attractive to a neighbour. I think that is the better view, rather than the proposition that sale to a neighbour is the only live option.
The boundary of "Old Station" is situated about 143 km west, north-west of Charters Towers, however there is no formally constructed access to the property. Dedicated access is available and Mr Gilbert consulted the Director of Engineering Services for the local authority concerning the prospect of the provision of constructed access. He was advised that if "Old Station" were held separately the local authority would probably construct access to the homestead, though I understand that would be on the basis that the homestead was located close to the relevant northern boundary. That may not be the preferred location of a house which would normally be towards the centre of a property. If it were the case that the local authority did not provide such access, Mr Gilbert estimated that road construction costs would be about $10,000 per km and that the required distance would be 5.8 km. Whilst Mr Carter sought to emphasise the point concerning the lack of constructed access, it is quite clear to me that the best evidence on this point came from Mr Gilbert who had undertaken inquiries and had formed his conclusion of the value of the property based on the outcome of those inquiries.
Practical access to "Old Station" is obtained from Charters Towers by 57 km of bitumen strip Lynd Highway, then 82 km of formed earth and gravel road, some sections of which have been bitumen sealed, but which cannot be considered all-weather, with the road becoming impassable during most wet seasons. Mr Gilbert said that access to the property is presently gained through "Felspar" via 4 km of station tracks to the "Old Station" boundary. Mr Carter said that alternative station track access is available through "Grenfell Downs", "Nulla Nulla" or "The Brook", however, the tracks are difficult to find.
I will not detail the description of country included in Mr Gilbert's valuation as Mr Carter offered no disagreement with that description. Mr Carter said that in terms of rock "Old Station" was similar to other properties in the area and did not have the rock wall disability found on "Felspar".
Mr Carter disagreed with Mr Gilbert's description of natural water on the subject property in that there is only one hole in Allingham Creek which holds water in most years, whereas Mr Gilbert's description can be taken to indicate that there are more permanent locations in that stream. Mr Gilbert said in his valuation report that waterholes along the edge of the basalt wall are regarded as permanent - information he obtained from departmental records, however, Mr Carter said that the opposite is true. I accept that Mr Carter's evidence on this point is to be preferred. Mr Carter added that the four creeks which sever the property do not run in most years, contrary to Mr Gilbert's assertion in his valuation report. I accept Mr Carter's evidence as being superior.
Notwithstanding these few points of disagreement, Mr Carter agreed with Mr Gilbert's assessment of carrying capacity at one beast to 10 ha on the basis that "Old Station" is not considered breeding country. I infer that in his estimate of carrying capacity Mr Gilbert took note of his identification of "Old Station" as being a fattening property, too wet and boggy to be used for breeding.
In his comparisons between "Amelia Downs" and "Junction Creek" with the "Old Station" property Mr Gilbert concluded that overall the subject land is slightly inferior to "Amelia Downs" and superior to "Junction Creek" - both considered on a per ha basis. Mr Carter agrees that the subject property is slightly inferior to "Amelia Downs", but expressed the view that insufficient allowance was made by Mr Gilbert for the presence of weed on "Old Station" and for the fact that the subject property suffers internal access problems resulting from its being cut by four creeks. These same points feature in his comparison between the "Old Station" property and "Junction Creek", leading Mr Carter to the view that the "Old Station" property is inferior to that sale property.
Whilst electricity and telephone connection are available in the property, they are not connected to "Old Station". Mr Gilbert acknowledged that it would be costly to make such a connection and indicated that he had taken this factor into account in his valuation.
Mr Carter said that there was old disused fencing material on both subject properties in the form of barbed wire left lying on the ground. He estimated 13 to 15 km of such material on "Felspar" and 8 to 9 km on "Old Station". I understand the practice is to roll up this wire and dump it when the opportunity presents. That will usually be after fire or after a drought. The fact that the old wire is still in place might suggest that it is more expensive to remove than the perceived benefit that would flow from moving it. The main problem posed by this wire is a safety one with Mr Carter expressing particular concern with respect to men on horseback, though cattle could also become entangled in the wire and suffer injury.
Mr Gilbert did not include consideration of this old fencing wire in his valuation but did agree that it was a problem on both properties. The concept of "worsement" was applied by the Land Appeal Court in Marano v. The Valuer-General (1978) 5 QLCR 194. In that case stone on the property under consideration was taken into account by the Court. Whilst Mr Gilbert questioned whether the wire under consideration in the present cases would constitute "worsement", I was not addressed on this subject, though I expressly raised it during Mr Gilbert's cross-examination. I see no difference in principle between the stone referred to in Marano and the disused fencing in the cases of "Felspar" and "Old Station". Section 3(1)(b) of the Valuation of Land Act provides that "unimproved value" means:
"(b) in relation to improved land - the capital sum which the fee simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require, assuming that, at the time as at which the value is required to be ascertained for the purposes of this Act, the improvements did not exist."

As I understand this provision, all that is required is the notional removal of improvements, not what were once improvements and have, over time, become a disability. In the case of Raynbird v. The Valuer-General (1980) 7 QLCR 106 disused quarry works were considered by the Court to constitute "worsement". It will often be the case that works of man which at one point in time could properly be described as an improvement will in due course lose that character and become a disability which needs to be taken into account in valuing the property for the purpose of the statute. I am of the view that the disused fencing material on the subject properties should be characterised as "worsement" and allowances should be made for that disability. Mr Gilbert said that the presence of disused fencing would probably not have an effect on the market value of the property, but may affect its marketability. I think that is too fine a distinction to make and think it appropriate that an allowance be made in the valuations of each of the subject properties.
Mr Carter described how there were instances where the boundary fence of "Felspar" was not located on the boundary with the result that significant parts of "Felspar" are fenced into either "Wandovale", "Nulla Nulla", "Amelia Downs" or "Kangerong". Mr Gilbert noted that part of the areas that Mr Carter had identified as being fenced out were in fact stock route and did not fall for valuation as part of the "Felspar" property. He said also that give-and-take fences are the norm in this area along the river with some properties gaining and some losing. I am of the view that, viewing the property on an unimproved basis, such give and take fencing is not a matter that properly falls for consideration.
The result of the above discussion is that I have concluded that Mr Gilbert's valuation approach in each appeal is to be preferred to those proffered by Mr Carter. I also conclude that the resultant valuation figures are supported by the evidence, subject, however, to some adjustment. In both cases I will adjust Mr Gilbert's valuations down to take account of the "worsement" resulting from the presence of the old fencing material on each property. I have no opinion from the parties of the quantum of such an adjustment, so will do the best I can on the evidence. In addition to the adjustment, I will, in the case of "Felspar" make a small allowance for the fact that in comparison with "Amelia Downs" the subject is the colder property.
The appeals are both allowed and the values of the Chief Executive are set aside. I determine the value of "Felspar" at Five Hundred and Ninety-five Thousand Dollars ($595,000) and the value of "Old Station" at Three Hundred and Twenty-five Thousand Dollars ($325,000).

RP SCOTT
MEMBER OF THE LAND COURT

[2001] QLC 102

28 September 2001